Armstrong Pump, Inc. v. Hartman et al

Filing 109

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER re 97 First MOTION to Amend/Correct 68 Amended Answer to Complaint, Crossclaim, Counterclaim, of Patent Invalidity filed by Armstrong Pump, Inc.Plaintiff's motion to amend its Answer to Counterclaim (Docket No. 97) is granted without precondition. Armstrong Pump, Inc. answer due 5/21/2012, Replies due by 6/5/2012.Scheduling Conference set for Tues., 6/26/2012, 10:30 AM, be fore Hon. Hugh B. Scott with Status Conference set for 6/26/2012, 10:30 AM, before Hon. Hugh B. Scott. Motions terminated: 97 First MOTION to Amend/Correct 68 Amended Answer to Complaint, Crossclaim, Counterclaim, of Patent Invalidity filed by Armstrong Pump, Inc. So Ordered. Signed by Hon. Hugh B. Scott on 5/15/2012. (DRH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ARMSTRONG PUMP, INC.,
Plaintiff,

Hon. Hugh B. Scott
v.
10CV446S
Order
THOMAS HARTMAN d/b/a THE
HARTMAN COMPANY and
OPTIMUM ENERGY LLC,
Defendants.

This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(C)
(Docket No. 74, Order of Aug. 25, 2011; see also Docket No. 13, initial Referral Order of
July 19, 2010). The instant matter before the Court is plaintiff’s motion (Docket No. 971) for
leave to replead and amend its Answer to the counterclaims asserted by defendant Optimum
Energy LLC (hereinafter “Optimum Energy”) (Docket No. 57, Ans. To First Am. Compl. With
Counterclaims, ¶¶ 78-132). Previously, Optimum Energy moved (Docket No. 70) to dismiss
plaintiff’s Amended Counterclaim for a declaratory judgment of patent invalidity (Docket

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In support of its motion, plaintiff submits its motion with exhibits (the proposed
amendment, Ex. A, and a redline/strikeout version, Ex. B), Docket No. 97; and its Reply to
Optimum’s Opposition to Motion for Leave to Replead and Amend, Docket No. 104, with
exhibit, the declaration of Thomas Love, a professional engineer retained by plaintiff. In
opposition, Optimum Energy submits its opposing Memorandum of Law, Docket No. 101. Also
in opposition, Hartman submits his attorney’s declaration, Docket No. 102, joining in Optimum
Energy’s response.

No. 68, ¶¶ 147-56) for failure to state a claim, pursuant to Federal Rules of Civil Procedure
12(b)(6) and 8. Co-Defendant Thomas Hartman d/b/a The Hartman Company (hereinafter
“Hartman”) joined in that motion (Docket No. 71). Optimum Energy then filed its motion for
partial summary judgment arguing that plaintiff was estopped from claiming that certain of its
products marked with particular patents do not practice these patents (Docket No. 78). This Court
recommended granting Optimum Energy’s motion (Docket No. 84), Armstrong Pump v.
Hartman, No. 10CV446, 2011 U.S. Dist. LEXIS 154372 (W.D.N.Y. Dec. 29, 2011) (Scott, Mag.
J.), and Chief Judge Skretny adopted and modified this recommendation, finding that plaintiff’s
counterclaims for patent invalidity were insufficiently plead and found the motion for summary
judgment to be premature and dismissed that motion without prejudice (Docket No. 96, Order of
Mar. 26, 2012, at 4-5, 6), Armstrong Pump v. Hartman, No. 10CV446, 2012 U.S. Dist. LEXIS
41252 (W.D.N.Y. Mar. 26, 2012) (Skrenty, C.J.). The next day, plaintiff filed the present motion
for leave to replead and to amend (Docket No. 97). Familiarity with that Report and the Chief
Judge’s Order is presumed.
Also pending before this Court is Optimum Energy’s motion to compel (Docket No. 99)
which does not appear to involve the patent invalidity issues in the motion for leave to amend (cf.
Docket No. 104, Pl. Reply Memo. at 4 (Optimum Energy has not asked for documents
concerning the patent invalidity counterclaims)). Briefing for that motion is pending (see Docket
No. 100).
Responses to this motion were due by April 18, 2012, with any replies due by April 27,
2012, and argument on May 2, 2012 (Docket Nos. 98, 106 (argument minutes)).

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The deadlines of the current Scheduling Order (Docket No. 43) were held in abeyance
pending resolution of Optimum Energy’s earlier motions (Docket No. 79). After objections were
filed to this Court’s Report & Recommendation, a status conference previously scheduled to
review the Scheduling Order was adjourned to be reset once the objections were resolved
(Docket No. 89). During argument of plaintiff’s latest motion for leave to amend, a status
conference was held also (see Docket No. 98), wherein the concern that a schedule could not be
entered at this time without first resolving the issues whether to grant leave to amend to replead
claims of patent invalidity which in turn, if granted, would involve scheduling a Markman2
hearing (Docket No. 106).
BACKGROUND
This is a contract dispute commenced in this Court under diversity jurisdiction (see
Docket No. 1, Compl.3 ¶¶ 1-4). Plaintiff initially sued defendants for breach of contract and
tortious interference with a contract. Plaintiff claims that it has pioneered products for customers
in residential, commercial and industrial markets, developing HVAC chilled water and boiler
water systems, pumps and other components (hereafter summarized as “chilled water products”)
(Docket No. 55, Am. Compl. ¶¶ 8-10). In the late 1990s, Hartman applied for and obtained
patents in methods, systems, and devices that improve the overall efficiency of chilled water
cooling systems. These patents, collectively called the “LOOP Patents,” include U.S. Patent

2

Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed. Cir. 1995), aff’d, 517 U.S.
370 (1996).
3

Plaintiff is a New York corporation, while defendant Optimum Energy is a Washington
limited liability company, and defendant Hartman is a Texas corporation, Docket No. 1, Compl.
¶¶ 1-3; Docket No. 55, First Am. Compl. ¶¶ 1-3.
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Nos. 5,946,926 (or “ ‘926,” variable flow chilled fluid cooling system), 6,257,007 (or “ ‘007,”
method of control of cooling system condenser fans and cooling tower fans and pumps), and
6,185,946 (or “ ‘946,” system for sequencing chillers in a loop cooling plant and other systems
that employ all variable-speed units) (id. ¶ 12). Plaintiff entered into negotiations with Hartman
to license the LOOP Patents to use in plaintiff’s chilled water products (id. ¶ 13). After two
years of negotiations, plaintiff signed a license agreement with Hartman (id. ¶ 15, Ex. A), with
negotiated exclusive rights to plaintiff to develop chilled water products incorporating the
licensed technology (id. ¶¶ 16, 33-39), and right of first refusal to any improvements in the three
LOOP Patents (id. ¶¶ 17-18).
Meanwhile, Hartman negotiated with Optimum Energy for the latter to obtain rights to
the LOOP Patents (id. ¶ 24). Since Optimum Energy was a non-manufacturing entity, Hartman
carved out limited rights in its license agreement (id. ¶¶ 27-29, Ex. B). Optimum Energy later
went into manufacturing and now directly competes with plaintiff (id. ¶¶ 29, 30). Optimum
Energy sought an assignment of the LOOP Patents and Hartman agreed to proceed with the sale
of those patents despite Hartman’s licensing agreement with plaintiff (id. ¶ 31). Hartman entered
into a Patent Purchase Agreement with Optimum Energy on February 9, 2010, and later entered
into an amended agreement and other ancillary agreements (id. ¶ 40, Ex. C).
Plaintiff alleges that Hartman breached its License Agreement by transferring the rights to
Optimum Energy (id. ¶¶ 43-46). Plaintiff also claims that Optimum Energy tortiously interfered
with that License Agreement with Hartman (id. ¶¶ 52-60).

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Proceedings
Plaintiff commenced this action on May 28, 2010, against defendants (Docket No. 1,
Compl.). Hartman (Docket No. 15) and Optimum Energy (Docket No. 17) each moved to
dismiss and plaintiff moved for a temporary restraining order (Docket No. 18; see Docket No. 19,
plaintiff’s motion for expedited hearing). Chief Judge Skretny denied Hartman and Optimum
Energy’s motions to dismiss (holding in abeyance each of their arguments that the Complaint
failed to state a claim), granted plaintiff a temporary restraining order (Docket No. 34; see also
Docket No. 38 (extending the temporary restraining order by fourteen days)), but later denied
plaintiff a preliminary injunction (Docket No. 39).
After defendants separately answered (Docket Nos. 10, 11), plaintiff moved (without
opposition) for leave to amend the Complaint (Docket No. 48; see Docket No. 54, Order granting
leave; Docket No. 55, Am. Compl.). The Amended Complaint, filed March 8, 2011, alleges
claims for breach of contract and tortious interference with a contract (Docket No. 55, Am.
Compl. ¶¶ 42-51, 52-60). On March 22, 2011, defendants again separately answered the
Amended Complaint (Docket Nos. 56, 57). Optimum Energy’s Answer asserted counterclaims
against plaintiff (Docket No. 57, ¶¶ 78-132), wherein Optimum Energy claims that it is the
successor in interest in plaintiff’s license agreement (id. ¶¶ 85-86) and alleged that plaintiff
committed multiple breaches of that agreement in installing the patented technology in an
impermissible manner (id. ¶¶ 87-105). After seeking a declaratory judgment as to the terms of
the licensing agreements of plaintiff and Optimum Energy (id. ¶¶ 106-12), Optimum Energy
alleged counterclaims for violation of the license agreement by plaintiff selling as a stand alone
product one of the patented technologies on a particular project, outside the scope of that license
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(id. ¶¶ 113-24), and sought another declaratory judgment as to scope of plaintiff’s licensing
agreement relative to that one purported stand alone product (id. ¶¶ 129-32).
Patent Allegations Introduced
In its Answer to the Amended Complaint, Optimum Energy also asserted counterclaims
for patent infringement by plaintiff selling the technology as a stand alone product (id. ¶¶ 12528).
Hartman in his Answer did not assert any counterclaims (cf. Docket No. 56).
Plaintiff initially answered Optimum Energy’s counterclaims, raising various affirmative
defenses, and asserted its own counterclaims and cross-claims based on the terms of the license
agreement (Docket No. 58, Ans. of Plaintiff to Am. Compl, Counterclaim, Crossclaim, filed Apr.
12, 2011). Optimum Energy then answered plaintiff’s counterclaims (Docket No. 60), while
Hartman answered Optimum Energy’s crossclaims (Docket No. 59).
Plaintiff then moved for leave to amend its answer to Optimum Energy’s counterclaims
(Docket No. 61) to assert patent-specific defenses and to assert a counterclaim for declaratory
judgment challenging the validity of defendants’ patents. Defendants did not oppose plaintiff’s
leave to amend, but reserved their respective rights to oppose the substance of any amendment
(Docket Nos. 63, 64). Leave to amend was granted on August 2, 2011 (Docket No. 65), and
plaintiff filed its Amended Answer (Docket No. 68). Specifically, plaintiff asserted there
declaratory judgment counterclaims that the LOOP Patents are invalid and fail to meet the
conditions for patentability (id. ¶¶ 147-56), see 35 U.S.C. §§ 101, 102, 103, 112. Plaintiff denies
infringement (id. ¶¶ 117, 113-28; see also Docket No. 78, Optimum Energy Statement ¶ 13).

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Optimum Energy then moved to dismiss plaintiff’s amended counterclaim for patent
invalidity (Docket No. 70), to which Hartman joined (Docket No. 71). Defendants argued that
plaintiff’s counterclaim fails to meet the plausibility standard recently set forth by the United
States Supreme Court in Twombly4 and Iqbal5. Optimum Energy next moved for partial
summary judgment to prevent plaintiff from contesting the validity of the LOOP Patents (Docket
No. 78, Notice of Motion).
This Court recommended that Optimum Energy’s motion to dismiss the amended
counterclaim be granted, but its motion for summary judgment did not need to be considered at
that time (Docket No. 84). The parties filed objections to this Report & Recommendation
(Docket Nos. 85, 88 (Optimum Energy), 86, 87 (plaintiff)) and Chief Judge Skretny accepted in
part and modified that Report, granting Optimum Energy’s motion to dismiss but denied without
prejudice as being premature its motion for summary judgment (Docket No. 96), as discussed
above.
Plaintiff’s Motion for Leave to Replead and Amend
The next day, plaintiff filed the present motion for leave to replead and amend (Docket
No. 97). Plaintiff asserts additional facts in its new counterclaim and alleges specific grounds for
the counterclaim, such as prior art or obviousness as described in cited articles from 1980s and
1990s (id. Exs. A, B). Plaintiff argues that, under Federal Rule of Civil Procedure 15(a),
amendment of pleadings is freely given and should be granted here (id. at 2). It denies that
defendants can establish unfair prejudice (id. at 3), it argues that it acted in good faith, it has not

4

Bell Atlantic Corp. v. Twombly, 550 U.S. 554 (2007).

5

Ashcroft v. Iqbal, 556 U.S. 662 (2009)
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unduly delayed in seeking leave to amend, and that amendment here would not be futile (id. at 45).
Optimum Energy objects to granting leave to amend arguing that plaintiff failed to act in
good faith; that it did not act in a timely fashion; that Optimum Energy would be prejudiced by
an amendment; and that an amendment would be futile because the proposed pleading is as
deficient as the dismissed counterclaim (Docket No. 101, Optimum Energy Memo. at 5-8, 9-10,
10-12, 12-16). As for bad faith, Optimum Energy contends that plaintiff initially argued that the
patents were essential to its business, seeking a temporary restraining order against their sale and
now plaintiff argues that these very patents are invalid (id. at 5). Optimum Energy contends that
plaintiff now asserts its invalidity counterclaim when it knew of the grounds all this time (id.).
Alternatively, Optimum Energy seeks to recover its attorney’s fees and costs as a condition for
amending the pleading (id. at 16-17).
Plaintiff replies that it waited until resolution of the motion to dismiss the initially plead
counterclaim before seeking leave to amend it (Docket No. 104, Pl. Reply Memo. at 1, 6-8).
Plaintiff claims that it acted in good faith, that its status as patent licensee is not inconsistent with
its challenge to the validity of the patents-in-suit (id. at 3). Plaintiff merely seeks to “add more
detail to remedy the dismissal” (id. at 4). Plaintiff began to construct its patent invalidity theories
only after Optimum Energy added the patent infringement counterclaim on March 22, 2011 (id.).
Plaintiff again denies that Optimum Energy would be unduly prejudiced by this amendment (id.
at 5-6) or that the amendment is futile (id. at 8-9). Plaintiff argues that granting this amendment
would expedite the proceedings and is in the interest of judicial economy, to decide the patent
validity and infringement issues in the same court (id. at 9). Finally, plaintiff denies that
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Optimum Energy should be entitled to attorney’s fees as the price for granting leave to amend
(id. at 9).
DISCUSSION
I.

Applicable Standards
Under Federal Rule of Civil Procedure 15(a), amendment of pleadings after the time to do

so as of right requires either consent of all parties (apparently not present here) or by leave of the
Court. Under Rule 15(a) motions for leave to amend a pleading are to be freely given when
justice requires. Granting such leave is within the sound discretion of the Court. Foman v.
Davis, 371 U.S. 178, 182 (1962); Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321,
330 (1971). “In the absence of any apparent or declared reason–such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.–the leave sought should, as the rules require, be ‘freely
given.’” Foman, supra, 371 U.S. at 182 (quoting Fed. R. Civ. P. 15(a)).
II.

Application
As noted by Optimum Energy during oral argument, the reasons for not freely granting

leave to amend are disjunctive; any ground would suffice and the opponent to an amendment
need not show undue prejudice if another reason exists for denying leave.
A.

Bad Faith

There is no bad faith established here. Plaintiff’s initial attempt to assert patent invalidity
counterclaims were denied for lack of detail and being devoid of facts to give defendants fair
notice of the basis for the counterclaims (Docket No. 96, Order of Mar. 26, 2012, at 4-5). Under
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Twombly/Iqbal or the Appendix Forms to the Federal Rule of Civil Procedure 84, the plaintiff is
not required to plead every fact it could to assert its claim when it learns of a fact, cf. Fed. R. Civ.
P. 8(a)(2) (short and plain statement of the claim). The plaintiff need only allege facts that “must
be enough to raise the right to relief above the speculative level,” Bell Atlantic Corp. v.
Twombly, 550 U.S. 554, 555 (2007) or state a claim for relief that is plausible on its face,
Ashcroft v. Iqbal, 556 U.S. 662, 678; Twombly, supra, 550 U.S. at 570, to survive a motion to
dismiss for failure to state a claim. The fact that plaintiff here may have had more information
than it alleged initially and waited to raise it after the counterclaim was dismissed does not mean
it acted in bad faith.
B.

Futility

Optimum Energy argues that the proposed amendment still fails to allege facts that make
its allegations plausible, asserting only amplified legal conclusions (Docket No. 101, Optimum
Energy Memo. at 13). The proposed amended counterclaim lists various articles prior to the
patent that plaintiff concludes are examples of prior art or obviousness of the patents that render
them invalid under 35 U.S.C. §§ 102 and 103 (see Docket No. 97, Exs. A, B). For the alleged
invalidity under 35 U.S.C. § 101 for unpatentable subject matter, plaintiff alleges conclusively
that each patent is unpatentable (id. Ex. A, proposed 2d Am. Ans. ¶¶ 150, 153, 156) without
stating facts to show how they were unpatentable. Section 101 allows anyone who invents or
discovers “any new and useful process, machine, manufacture, or composition of matter, or any
new and useful improvement thereof” to obtain a patent “subject to the conditions and
requirements” of title 35 of the United States Code, 35 U.S.C. § 101. Plaintiff makes no factual
allegation how § 101 was violated.
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Another district court recently found that a counterclaim was conclusory and failed to
sufficiently plead patent invalidity under Twombly and Iqbal, Memory Control Enter., LLC v.
Edmunds.com, Inc., No. CV 11-7658 PA (JCx), 2012 U.S. Dist. LEXIS 31501, at *7-10 (C.D.
Cal. Feb. 8, 2012). There, the plaintiff counterclaimed alleging that the patent violated 35 U.S.C.
§§ 101, 102, 103, 112 and listed a non-exhaustive list of grounds for invalidity but failed to state
facts supporting that invalidity, id. at *7-8; see also PPS Data, LLC v. Availity, LLC, No. 3:11cv-747-J-37TEM, 2012 U.S. Dist. LEXIS 9452, at *3-4 (M.D. Fla. Jan. 26, 2012) (pleading
counterclaim seeking declaratory judgement as to non-infringement needs to allege more than
patents at issue, formulaic recitations of claims that patents are not infringed and invalid).
Here, plaintiff alleges the absence of specification under 35 U.S.C. § 112 for each patent
and literature providing prior art or obviousness under §§ 102 and 103 to state claims. Plaintiff’s
contentions under § 101, however, fail to allege facts that would put defendants on notice of the
points where the patents are otherwise invalid. Plaintiff needs to allege more than the conclusion
that the patented devices or processes are unpatentable.
But this is a motion for leave to amend and determining whether it would be futile to
amend the pleading and not whether such pleading, if allowed, would be later dismissed. “A
proposed claim may be labeled futile only where it is clearly ‘frivolous or legally insufficient on
its face,’” Gallegos v. Brandeis Sch., 189 F.R.D. 256, 259 (E.D.N.Y.) (Pohorelsky, Mag. J.),
adopted, 189 F.R.D. 256 (E.D.N.Y. 1999) (quoting Sterling v. Interlake Indus., 154 F.R.D. 579,
589 (E.D.N.Y. 1994)). “If the proposed claim sets forth facts and circumstances which may
entitle the plaintiff to relief, then futility is not a proper basis on which to deny the amendment,”
Gallegos, supra, 189 F.R.D. at 259, “even where the possibility of relief is remote, amendment
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must be permitted because it is the possibility of recovery, not its likelihood, that guides the
court’s analysis, id. (citations omitted).
Section 101of the Patent Code incorporates compliance with other sections of Title 35 of
the United States Code, hence plaintiff’s pleading its counterclaim under the other provisions
saves the § 101 ground because defendants are given notice of non-compliance with § 101
through the alleged violations of the other cited sections. Plaintiff’s amendments state facts and
circumstances that would not render amendment futile.
C.

Undue Prejudice to Defense

Prejudice would arise if, for example, the movant changes its position and its opponent,
relying upon the earlier position, was now forced to address new contentions at a cost of time and
effort. Prejudice entails consideration of the hardship to the movant if leave is denied, the
reasons for the movant failing to include the material in the original pleading, and the injustice to
the opponent should the motion be granted, 6 Wright, Miller & Kane, supra, § 1487, at 621, 623.
Here, since Optimum Energy raised the patents as a claim in this licensing agreement dispute,
plaintiff amended its Answer to the counterclaim to contest the validity of the patents. Optimum
Energy has been aware of this and is not prejudiced by plaintiff’s attempt to reassert this
dismissed counterclaim. Plaintiff’s amendment amplifies its pleading where this Court noted
that it was deficient, in stating in more detail the facts supporting the invalidity claims.
D.

Undue Delay

Optimum Energy argues that plaintiff was aware of the facts for its invalidity
counterclaim and delayed revealing it until after its first try to assert it was dismissed. But, as
stated above regarding bad faith, plaintiff was not obligated to allege every fact the first time to
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support filing its counterclaim. To determine whether there was undue delay, the key is the time
between the dismissal of plaintiff’s initial counterclaim and the filing of its proposed
amendment, not some earlier time when plaintiff might have been aware of the underlying facts.
Plaintiff almost immediately filed its amendment to try to replead that claim. Hence, there was
no undue delay.
E.

In Sum

Denial of leave to amend can occur if any reason stated in the rule--undue delay, bad
faith, prejudice to defendants, or futility--arises. This Court finds that none of these reasons
apply to justify denying leave. There has been no undue delay or prejudice to defendants,
plaintiff can assert these claims, and plaintiff did not act in bad faith in not alleging them in the
earlier iteration of the counterclaim.
As a result, plaintiff is to file and serve its Second Amended Answer, similar to the
exhibit attached to its motion (Docket No. 97, Ex. A), by May 21, 2012; defendants may reply to
this Answer, see Fed. R. Civ. P. 7(a)(7), 12(a)(4), by June 5, 2012.
F.

Condition for Amendment?

Optimum Energy alternatively argues that if leave to amend is granted plaintiff should
pay defendants’ attorneys’ fees and expenses as a condition for obtaining this relief (Docket
No. 101, Optimum Energy Memo. at 16-17). As noted (id. at 16), this Court has the discretion to
impose costs in granting leave to amend the pleading, see 6 Charles A. Wright, Arthur R. Miller
& Mary Kay Kane, Federal Practice and Procedure § 1486, at 604 (2d Civil Ed. 1990). This
Court declines to condition granting this leave. The instances where courts have conditioned
leave to amend were to cover the costs incurred for pleadings now mooted by the amendment,
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e.g., Global Energy & Mgmt., LLC v. Xethanol Corp., No. 07 Civ. 11049, 2009 U.S. Dist.
LEXIS 14400, at *12-13 (S.D.N.Y. Feb. 24, 2009), or the amendment was due to newly
discovered evidence, Hayden v. Feldman, 159 F.R.D. 452 (S.D.N.Y. 1995) (id.), or multiple
attempts at amendment were made (see Docket No. 104, Pl. Reply Memo. at 9-10, distinguishing
cases cited by Optimum Energy, Docket No. 101, at 16-17). Conditions also have been imposed
where the amendment articulates new theories, 6 Wright, Miller & Kane, supra, § 1486, at 606.
For example, the district court has declined to order conditions where an amendment was sought
promptly upon the changed circumstance (there a consummated merger), and the fact that
discovery and other pretrial procedures had not yet been initiated, Maynard, Merel & Co. v.
Carcioppolo, 51 F.R.D. 273, 280 (S.D.N.Y. 1970); see 6 Wright, Miller & Kane, supra, § 1486,
at 606.
Here, while there has been extensive pretrial proceedings the change of the focus of this
case from a contract dispute to a patent case came first with Optimum Energy’s counterclaim.
Optimum Energy’s alternative relief of imposing a condition of its attorneys’ fees and costs for
granting leave (Docket No. 101, Optimum Energy Memo. at 16-17) is denied.
III.

Scheduling
In light of the disposition of this motion just stated, an amended schedule remains in

order (see Docket No. 79) one with a Markman briefing and hearing schedule included. The
deadlines in the Scheduling Order (Docket No. 43) has passed. The deadline for plaintiff to file
its amended pleading and defendants’ responses thereto need to be established. Therefore, a
Status and potential Scheduling Conference shall be held on Tuesday, June 26, 2012, at
10:30 am, before the undersigned at which time an amended schedule will be discussed.
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CONCLUSION
Based upon the above, plaintiff’s motion for leave to amend its Answer to the
Counterclaim (Docket No. 97) is granted, without subjecting plaintiff to any condition.
Plaintiff is to file and serve its Second Amended Answer, similar to the exhibit attached to its
motion (Docket No. 97, Ex. A), by May 21, 2012; defendants may reply to this Answer, see Fed.
R. Civ. P. 7(a)(7), 12(a)(4), by June 5, 2012. In light of this and the resolution of plaintiff’s
motion, a Scheduling/Status Conference shall be held on Tuesday, June 26, 2012, at
10:30 am, before the undersigned.
SO ORDERED.

/s/ Hugh B. Scott
Hon. Hugh B. Scott
United States Magistrate Judge
Dated: Buffalo, New York
May 15, 2012

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